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District Court of Appeal, Fifth District, California.

Marlene E. REUTHER, David Reuther, a minor, by and through his Guardian ad Litem, Jack A. Reuther, and Jack A. Reuther, individually, Deborah Reuther, a minor, by and through her Guardian ad Litem, Jack A. Reuther, and Jack A. Reuther, individually, Plaintiffs, Appellants and Respondents, v. Mary L. VIALL, Defendant, Respondent and Appellant.

Civ. 261.

Decided: October 07, 1964

George N. Zenovich, Fresno, for plaintiffs, appellants and respondents. Stammer, McKnight, Barnum, Bailey & Barnett, and Dean A. Bailey, Fresno, for defendant, respondent and appellant.

Plaintiffs, Mrs. Reuther and her two minor children by their guardian ad litem, have appealed from an order granting defendant a new trial, and defendant has appealed from an order denying her motion for judgment notwithstanding the verdict.

The Reuthers and the Vialls were neighbors and friends. The adult members of the two families spent the day waterskiing, and upon their return, as the Reuther automobile had the boat and trailer attached, the Viall automobile was used to return the Reuther's babysitter to her home. The two women, still in their swimming clothes and accompanied by children of both families, got into the Viall automobile. Mrs. Viall drove, Mrs. Reuther sat in the right front seat with her son beside her in the middle, and in the back seat behind Mrs. Reuther sat the babysitter holding Mrs. Reuther's one-year-old child in her lap. Mrs. Viall's own daughter sat in the left rear seat.

Mrs. Viall drove in an easterly direction for about two blocks, stopped at a stop sign, turned right, and proceeded several blocks on a street with which she was familiar. The trip was uneventful until she reached a point about one-half block from the point of impact, when Mrs. Reuther pulled out a cigarette lighter located in the dashboard. The heat element parted from the handle, falling to the floor of the automobile near Mrs. Viall's feet. Mrs. Reuther reached across her son and around a center floor-mounted airconditioning unit to retrieve the hot element, saying, ‘I will get it.’ At the same time Mrs. Viall, the driver reached down for the lighter, keeping one hand on the steering wheel. While both women were so occupied, the automobile crossed into the oncoming traffic lane, narrowly missing one automobile, but colliding with the second.

The driver of the first automobile testified that the Viall automobile ‘drifted’ into his lane, and that about six seconds elapsed between the time the automobile passed him and the time it struck the automobile following him.

The Viall automobile was furnished to Mr. Viall by his employer for use in his business and for his and his wife's personal use. It was equipped with power steering and was driven ‘perhaps once a week’ by Mrs. Viall. She normally drove another older car not equipped with power steering. Mrs. Viall had knowledge that the lighter had come apart about a month prior to the accident.

Plaintiffs were guests in defendant's automobile within the purview of Vehicle Code, section 17158, which provides that a guest may recover from the owner or the driver of the vehicle in which he has accepted a ride, only in the event ‘plaintiff in any such action establishes that injury or death proximately resulted from the intoxication or willful misconduct of the driver.’ Intoxication is not an issue and the case comes to us on the sole question of defendant's willful misconduct.

We shall take up defendant's appeal first, for if the denial of defendant's motion for judgment notwithstanding the verdict is to be reversed, the judgment will supersede the order granting defendant's motion for a new trial.

In reviewing an order for judgment notwithstanding the verdict, an appellate court must follow the rules that govern a review of an order granting a nonsuit. (Reynolds v. Willson, 51 Cal.2d 94, 99, 331 P.2d 48.) That is to say, plaintiff's evidence must be given all the value to which it is legally entitled, conflicts in the evidence must be disregarded, and every legitimate inference which may be drawn from the evidence must be indulged in favor of plaintiff. (Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768.) It is only in cases where, after a review of the record according to these precepts it can be said there is no substantial evidence to support a verdict in favor of the plaintiff, that an order for judgment notwithstanding the verdict is warranted.

We approach the evidence keeping in mind the observation in Meyer v. Blackman, 59 Cal.2d 668, 677, 31 Cal.Rptr. 36, 42, 381 P.2d 916, 922, that ‘the existence of willful misconduct is essentially a question of fact.’ Thus, as in an ordinary negligence case, it is the province and the duty of the trier of fact to determine what the facts are. Yet, unlike the negligence case wherein in the facts once established are measured objectively against the conduct of a ‘person of ordinary prudence’ in similar circumstances, the determination of willful misconduct requires the trier of fact to infer a defendant's state of mind at the time the facts unfolded. It is one thing to say that a given course of conduct does or does not measure up to an established standard, as in negligence cases, but quite another to infer that the driver went through a course of conduct with a particular intent or frame of mind.

A reading of the cases discloses that occasionally a fine line has been drawn between willful misconduct and negligence, and there seems to be some variance from case to case. But this, we think, must necessarily be the result as the facts from which a state of mind is inferred are peculiar to the individual case, and because the inference usually rests on circumstantial evidence. Thus it is difficult for the courts to lay down specific criteria for the guidance of the trier of fact in making such a subjective determination. Two tests or rules approved by the Supreme Court in the Meyer case, supra, are stated at page 677 of 59 Cal.2d, at page 42 of 31 Cal.Rptr., at page 922 of 381 P.2d as follows:

‘Willful misconduct “involves deliberate, intentional or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom.” (Emery v. Emery, 45 Cal.2d 421, 426, 289 P.2d 218, 221.) Or as more recently stated, ‘Wilful misconduct means intentional wrongful conduct, done either with knowledge that serious injury to the guest probably will result or with a wanton and reckless disregard of the possible results.’ (Goncalves v. Los Banos Mining Co., 58 Cal.2d 916, 918, 26 Cal.Rptr. 769, 770, 376 P.2d 833, 834.)'

Following these and similar tests, a reviewing court rarely overturns a verdict based on an inference drawn from the facts since it has only the printed page before it. The record before us, however, reflects that the verdict exceeds the bounds of reason, first, because defendant's own child was riding in the automobile and, second, there is nothing in the record to indicate, even remotely, that defendant is other than a normal woman and mother. The state of mind inferred by the trier of the facts must comport with reason and the nature of things, including human instincts. It appears to us that the driver's acts here were normal and natural. Mrs. Reuther, the adult plaintiff-guest, testified that she did not think defendant intended to hurt anyone, nor did she think defendant intended to get on the wrong side of the road. Defendant testified that after the lighter element fell on the floor, ‘* * * it occurred to me that it might possibly start a fire on the rug, or roll back towards the children in the back seat, and it also occurred to me that it might hit my foot so I just automatically and quickly reached down, thinking I could pick it up very quickly and prevent anything more serious from happening.’

To meet the tests laid down in the Meyer case, supra, it must be said that defendant looked downward and away from her driving, permitting the car to drift into the oncoming lane, with conscious knowledge of, or appreciation of, the fact that serious injury would probably result to her child, and that defendant acted intentionally and with a wanton and reckless disregard of the possible results. In these circumstances, substantial evidence is necessary to justify the jury's verdict which runs contrary to all normal, natural human instincts. We have not found such evidence in the record.

Furthermore, we do not see how the trier of fact could conclude that defendant had a bifurcated intent or state of mind as she drove the car. She could hardly have intended no harm to come to her own child through her acts and at the same time entertain a wanton and reckless disregard for the possibility that the same acts would result in injury to plaintiffs riding in the same vehicle.

Whether the guest statute is in accord with the times is not the question, and we cannot weigh the hardships emanating from the guest statute against the evils which it aims to remedy. These matters were weighed by the Legislature when it enacted the guest statute. If a change is expedient, it must be made by the Legislature. It should not be accomplished by loosening the judicial guidelines for resolving whether a particular set of facts supports an inference of willful misconduct, thereby permitting a trier of fact to draw unnatural and unreasonable inferences from the evidence.

The order granting defendant a new trial is reversed; the order denying defendant's motion for judgment notwithstanding the verdict is reversed and the case is remanded to the trial court with instructions to enter a judgment for defendant notwithstanding the verdict.

STONE, Acting Presiding Justice.

RALPH M. BROWN, Justice, concurs. CONLEY, P. J., not participating.